With regard to your post of the 26th, I staggered through about half of it then gave up-- why so much weight given to AG opinions? He is but an employee of the executive branch , , ,

In part because the "AG's" opinion is really the OLC's opinion, and it has been a clearing house for the executive branch's best understanding of the recess appointment for several decades, and this is true of either party in the WH. Also, like the USSC (in some ways), the opinions of OLC usually build on each other, with what amounts to precedent. In other words, no matter what was said on FOX, chances are exceptionally good that there was some precedent for this.

In general you may well be right, but working from memory here, "Jeet Kune Do is a matter of responding to the specific instance in front of us, not the general rules".

The specifics are " that it was Senator Harry Reid who began the practice in question here, and that, unlike Obama, President Bush respected the Senate's power to declare whether it was in session or not. The one trying to break new ground here was Obama."

PS: Does your non-response on "a recess" and "the recess" mean that you concede the point?

This is The Age of Ignorance. Our “intellectuals” can’t think. Our “scholars” parrot each other. The self-educated fixate on idiotic theories. Our People despise Truth and disseminate lies.

Nullification deniers such as Matthew Spalding of Heritage Foundation, Jarrett Stepman of Human Events, law professor Randy Barnett, David Barton of Wallbuilders, and history professor Allen C. Guelzo, say that nullification by States of unconstitutional acts of the federal government is unlawful and impossible. They make the demonstrably false assertions that: ■States don’t have the right to nullify unconstitutional acts of the federal government because our Constitution doesn’t say they can do it; ■Nullification is literally impossible; ■The supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says; and ■James Madison, Father of Our Constitution, opposed nullification.

The deniers seem unaware of the two conditions our Framers saw must be present before nullification is proper and possible. These conditions are important – you will see why!: ■The act of the federal government must be unconstitutional – usually a usurpation of a power not delegated to the federal government in the Constitution; and ■The act must be something The States or The People can “nullify”- i.e., refuse to obey: the act must order them to do something or not do something.

What is “Interposition” and What is “Nullification”?

A State “interposes” when it stands between the federal government and The Citizens of the State in order to protect them from the federal government. Interposition takes various forms, depending on the circumstances. Hamilton refers to interposition in Federalist No. 33 (5th para):

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [the Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” [emphasis mine]

“Nullification” is one form of interposition. Now! Here are three highly relevant illustrations:

When the act of the federal government is unconstitutional and orders The States or The People to do – or not do – something, nullification is the proper form of interposition.

When the act of the federal government is unconstitutional, but doesn’t order The States or The People to do – or not do – something (the alien & sedition acts), nullification is not possible. The States may interpose by objecting, as in The Virginia & Kentucky Resolutions of 1798.

When the act of the federal government is constitutional, but unjust (the Tariff Act of 1828), the States may not nullify it; but may interpose by objecting and trying to get the Tariff Act changed.

Our Founding Principles in a Nutshell

In order to understand The Right of Nullification, one must also learn the Founding Principles set forth in The Declaration of Independence (2nd para). Then one can see that “when powers are assumed which have not been delegated, a nullification of the act” 1 is “the natural right, which all admit to be a remedy against insupportable oppression.” 2 These Principles are: 1.Rights come from God; 2.People create governments; 3.The purpose of government is to secure the rights God gave us; and 4.When a government We created seeks to take away our God given rights, We have the Right – We have the Duty – to alter, abolish, or throw off such government.

Let us look briefly at these Principles:

1. Our Declaration of Independence (2nd para) recognizes that God is the grantor of Rights. So Rights don’t come from the Constitution, the supreme Court or the federal government.

2. The Preamble to our Constitution shows that WE THE PEOPLE created the federal government. It is our “creature”. Alexander Hamilton says this in Federalist Paper No. 33 (5th para); and Thomas Jefferson, in his draft of The Kentucky Resolutions of 1798 (8th Resolution). As our “creature”, it may lawfully do only what WE authorized it to do in our Constitution.

We created a “federal” government: An alliance of Sovereign States 3 associated in a “federation” with a national government to which is delegated supremacy over the States in few and defined areas only. James Madison says in Federalist No. 45 (9th para):

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which … concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” [boldface mine]

Do you see? We delegated only “few and defined” powers to the federal government. These are the “enumerated powers” listed in the Constitution. 4

It is to secure our right to liberty by: ■Laws against slavery (13th Amendment); ■Providing fair trials in federal courts (4th, 5th, 6th, 7th, and 8th Amendments); and ■Obeying the Constitution!

This is how our federal Constitution implements The Founding Principle that the purpose of government is to secure the rights God gave us.

4. The fourth Founding Principle in our Declaration is this: When government takes away our God given rights, We have the Right & the Duty to alter, abolish, or throw off such government. Nullification is thus a natural right of self-defense:

Thomas Jefferson said:

“… but where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…” 6 [boldface mine]

James Madison commented on the above:

“… the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression…” 7

Alexander Hamilton says in Federalist No. 28 (5th para from end):

“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success …” [boldface mine]

Hamilton then shows how The States can reign in a usurping federal government:

“…the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority…”

Do you see?

But the nullification deniers do not see because, in addition to their apparent unfamiliarity with the original source writings on nullification (as well as The Federalist Papers), they reject, or do not understand, the Founding Principle that Rights pre-date & pre-exist the Constitution and come from God. Nullification is not a paltry “constitutional right”!It has a hallowed status – it is that natural right of self-defense which pre-dates & pre-exists the Constitution.

Now, let us look at the false assertions made by the nullification deniers.

False Assertion 1:

That States can’t nullify unconstitutional acts of the federal government because the Constitution doesn’t say they can do it.

1. As we have just seen, Jefferson, Madison, and Hamilton saw nullification of unconstitutional acts of the federal government as a “natural right” – not a “constitutional right”. And since Rights come from God,there is no such thing as a “constitutional right”!

2. The Right of Nullification, transcending as it does, the Constitution; and being nowhere prohibited by the Constitution to the States, is a reserved power. The 10th Amendment says:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Nothing in the federal Constitution prohibits The States from nullifying unconstitutional acts of the federal government. Thus, nullification is a reserved power of the States & The People.

3. We saw where Madison says in Federalist No. 45 that the powers delegated to the federal government are “few and defined”, and all other powers are “reserved to the several States”.

Thus, it is the federal government which is supposed to look to the Constitution for the list of “enumerated powers” We The People delegated to it.

The States don’t go to the Constitution to look for permission because they retain all powers they didn’t exclusively 8 delegate to the federal government, or prohibit by Art. I, Sec. 10.

The nullification deniers have it backwards: They permit the federal government to ignore the “enumerated powers” limitations set forth in the Constitution; but insist The States can’t do anything unless the Constitution specifically says they can!

Do you see how they pervert Our Constitution?

False Assertion 2:

That Nullification is literally impossible.

We saw above the two conditions which must exist before nullification is proper and possible: ■The act of the federal government must be unconstitutional,and ■The act must be something The People or The States can refuse to obey.

Here are examples of unconstitutional federal acts the States can and should nullify:

The Constitution does not delegate to the federal government power to ban Christianity from the public square. But in 1962, the supreme Court first ordered The States to stop prayers in the public schools. That Court next banned the Ten Commandments from the public schools. Since those orders were usurpations of powers not lawfully possessed by the Court,the States should have nullified them by directing their School Boards to ignore them.

If Congress by “law”, or the President by “executive order”, orders The People to turn in our guns, We must refuse to comply. The Constitution doesn’t authorize the federal government to disarm us. So, The States and The People must nullify such law or order by refusing to obey.

Here are examples of unconstitutional & unjust State laws Martin Luther King nullified:

The Jim Crow laws required black people to sit at the back of the bus, and prohibited them from eating in public places and using public restrooms, water fountains, park benches, etc. Using non-violent civil disobedience, MLK led black people to refuse to obey these unjust and unconstitutional (Sec. 1, 14th Amdt.) laws. This was nullification by brave Citizens!

Now, I’ll show you unconstitutional acts which couldn’t be nullified because they weren’t directed to anything The States or The People could refuse to obey:

In 1798, Thomas Jefferson wrote The Kentucky Resolutions, and James Madison wrote The Virginia Resolutions. These Resolutions objected to laws made by Congress which purported to grant to the President dictatorial powers over aliens and seditious words.

Kentucky and Virginia could object, but they couldn’t prevent the President from enforcing the alien & sedition acts, because the President had the raw power to send out thugs to arrest aliens or people who had spoken or written “seditious” words; and then to persecute them.

So Jefferson and Madison showed why the alien & sedition acts were unconstitutional, protested them, and asked other States to join the protest.

Now! Note Well: Randy Barnett, law professor, and other deniers crow that the Virginia and Kentucky Resolutions prove there is no “literal power” of nullification in the States.

But Barnett should know better because he is a lawyer. Every litigation attorney knows this: At a motion hearing before the judge, opposing counsel whips out a court opinion which he cites as authority for a legal point. He gives the judge a highlighted copy and gives you (opposing counsel) an un-highlighted copy. While he is making his argument to the judge, you must listen to what he is saying, and at the same time, read the opinion and develop an argument which “distinguishes” the opinion opposing counsel is using from the case at bar. When opposing counsel finishes, the judge looks at you and says, “And how do you respond?” You must be ready with your argument right then.

Are we to believe that Randy Barnett, law professor, sitting in his ivory tower and under no pressure, is unable to distinguish between situations where a State does have a “literal power” to nullify an unconstitutional act of the federal government [when it orders The State or The People to do -or not do - something]; and when The State does not have a “literal power” to nullify the act [because, as with the alien & sedition acts, it does not dictate something The States or The People can refuse to obey]?

False Assertion 3:

That the supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says.

The federal government has become a tyranny which acts without constitutional authority.

This came about because we were lured away from The Founding Principle that the purpose of government is to secure the Rights God gave us; and were seduced into believing government should provide for our needs and protect us from the challenges of Life.

Progressives of the early 1900s 9 transformed the federal government into the Frankensteinian monster it is today. They imposed the regulatory welfare state where the federal government regulates business and commerce, natural resources, human resources, and benefits some people [e.g., welfare parasites, labor unions & obama donors] at the expense of others.

The Progressives claimed the power to determine what is in the “public interest” and have the federal government implement their notions of what advances the “public interest”.

Under the Progressives, the federal government was no longer limited by the enumerated powers delegated in the Constitution; but would follow the “will of the people” as expressed by their representatives in the federal government. In other words, the Progressives gave the federal government a blank check to fill out anyway they want. People in the federal government now claim power to do whatever they want to us.

The federal government imposed by the Progressives is evil: ■In order to provide benefits to some; the federal government violates the God-given property rights of others. The federal government robs Peter to pay Paul. ■In order to protect us from the challenges of life (including made up problems such as “global warming” and “lack of medical insurance”), the federal government violates everyone’s God-given rights to Liberty.

And thus today, the federal government: ■Usurps powers not delegated to it in the Constitution. Most of what it does is unconstitutional as outside the enumerated powers delegated in our Constitution. ■Has become an instrument of oppression, injustice, and immorality. ■Has taken away most of our God given rights, and is now conniving to take away our God given right to self-defense.

Now you know how the federal government was transformed from being the securer of our God given rights to a tyranny which oppresses some of the people for the benefit of others; and takes everyone’s Liberty away – except for those in the ruling class.

So! What do We do? What can We do?

The nullification deniers insist We must obey whatever Congress and the President dictate unless five (5) judges on the supreme Court say We don’t have to. They say the supreme Court is the final authority on what is constitutional and what is not.

But think: Who created the federal government?

We did! It is our “creature”. Is the “creature” to dictate to the “creator”?

The nullification deniers say, “Yes!” They say that: ■Every law made by Congress [the Legislative Branch of the federal government] is “supreme”; and ■Every executive order issued by the President [the Executive Branch of the federal government] is binding; and ■The States and The People must obey, unless and until five (5) judges on the supreme Court [the Judicial Branch of the federal government] say the law or executive order is unconstitutional.

In other words, only the federal government may question the federal government.

Under their vision, the federal government WE created with the Constitution is the exclusive and final judge of the extent of the powers WE delegated to it; and the opinion of five (5) judges, not the Constitution, is the sole measure of its powers.

Jarrett Stepman regurgitates the statist lie that “the ultimate decision maker in terms of America’s political system is the Supreme Court.”

Randy Barnett, law professor, chants the statist refrain, “…What has the Supreme Court said and meant? and … Are there now five justices to sustain the claim?”.

Barnett selects two paragraphs from Madison’s Report on the Virginia Resolutions (1799-1800), (which address the alien & sedition acts), and claims they show Madison “expressly denies, or at minimum equivocates about whether, there is a literal power of nullification in states”.

Well, We saw above that States couldn’t nullify the alien & sedition acts because they purported to grant dictatorial powers to the President; and did not require The States or The People to do – or not do – something.

And the two paragraphs Barnett claims are so “telling” as to The States’ lack of “literal power” to nullify anything, and as to the ultimate authority of the Judicial Branch, appear under Madison’s discussion of the last two Resolutions where Virginia had asked other States to join the protest. Madison merely says the citizens and legislature of Virginia have the right to communicate with other States; and in so doing, they are not exercising a judicial function.

Now! Note Well: Madison actually says, in the same Report Barnett cites, that it is “a plain principle, founded in common sense” that The States are the final authority on whether the federal government has violated our Constitution! Under his discussion of the 3rd Resolution, Madison says:

“It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts; that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made, has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.” [emphasis mine]

A bit further down, Madison explains that if, when the federal government usurps power, the States cannot act so as to stop the usurpation, and thereby preserve the Constitution as well as the safety of The States; there would be no relief from usurped power. This would subvert the Rights of the People as well as betray the fundamental principle of our Founding:

“…If the deliberate exercise, of dangerous power, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself as well as to provide for the safety of the parties to it; there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the State constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.” [emphasis mine]

A bit further down, Madison answers the objection “that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort”.

Madison explains that when the federal government acts outside the Constitution by usurping powers, and when the Constitution affords no remedy to that usurpation; then the Sovereign States who are the Parties to the Constitution must likewise step outside the Constitution and appeal to that original natural right of self-defense.

Madison also says that the Judicial Branch is as likely to usurp as are the other two Branches. Thus, The Sovereign States, as The Parties to the Constitution, have as much right to judge the usurpations of the Judicial Branch as they do the Legislative and Executive Branches:

“…the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another — by the judiciary as well as by the executive, or the legislature.”

Madison goes on to say that all three Branches of the federal government obtain their delegated powers from the Constitution; and they may not annul the authority of their Creator. And if the Judicial Branch connives with other Branches in usurping powers, our Constitution will be destroyed. So the Judicial Branch does not have final say as

“…to the rights of the parties to the constitutional compact, from which the judicial as well as the other department hold their delegated trusts. On any other hypothesis, the delegation of judicial power, would annul the authority delegating it; 10 and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution, which all were instituted to preserve.”

Shame on you nullification deniers who misrepresent what Madison said, or ignorantly insist that Madison said the Judicial Branch is the Final Authority!

False Assertion 4:

That James Madison opposed Nullification by States of Unconstitutional Acts of the Federal Government.

Matthew Spalding (Heritage Foundation) and David Barton (Wallbuilders) cite South Carolina’s Nullification Crisis of 1832 as “proof” that James Madison “vehemently opposed” nullification.

What Spalding and Barton say is not true. Did they read what Madison wrote on S. Carolina’s doctrine of nullification? Are they so lacking in critical thinking skills that they can’t make the distinction between the nullification doctrine Madison (and Jefferson & Hamilton) embraced, and the peculiar doctrine of nullification advanced by S. Carolina?

We saw in Madison’s Report on the Virginia Resolutions (1799-1800) that in a proper case, “interposing even so far as to arrest the progress of the evil” is essential “to preserve the Constitution itself as well as to provide for the safety of the parties to it”.

And we saw above that the condition which must be present before nullification is proper, is that the act of the federal government must be unconstitutional.

Now, let’s look at The Tariff Act of 1828 and the S. Carolina Nullification Crisis:

South Carolina was an agricultural state. During the 1820’s, they bought manufactured goods from England. England bought cotton produced by S. Carolina and other Southern States.

However, “infant industries” in the Northeast were producing some of the same manufactured goods as England; but they were more expensive than the English imports. So they couldn’t compete with the cheaper imports.

So! In 1828, Congress imposed a high tariff on the English imports. The Southern States called this the “tariff of abominations”, because the tariff made the English goods too expensive to buy; and since the Southern States stopped buying English goods, the English stopped buying Southern cotton. The Southern States had to pay more for manufactured goods, they lost the major buyer of their cotton; and their economy was weakened.

Now! Note Well: Our Constitution delegates specific authority to Congress to impose tariffs on imports, and the tariff must be the same in each State (Art. I, Sec. 8, cl. 1).

Thus, the Tariff Act of 1828 was constitutional! 11

So! Can you, dear Reader, see something which Matthew Spalding, Ph.D., and David Barton are unable to see? South Carolina wanted to nullify a constitutional law!Of course, Madison opposed S. Carolina’s peculiar doctrine of nullification! Madison (and Jefferson & Hamilton) always said the act nullified must be unconstitutional!

In his Notes on Nullification (1834), 12 Madison addressed S. Carolina’s peculiar doctrine. He said that in the Report of a special committee of the House of Representatives of South Carolina in 1828, a doctrine of nullification was set forth which asserted that: ■A State has a “constitutional right” to nullify any federal law; and ■The nullification is presumed valid, and is to remain in force, unless ¾ of the States, in a Convention, say the nullification isn’t valid.

What Madison opposed was the particular doctrine of nullification set forth by S. Carolina; and what Madison actually said about the S. Carolina doctrine is this: ■The federal government has delegated authority to impose import tariffs; ■The Constitution requires that all import tariffs be uniform throughout the United States; ■States can’t nullify tariffs which are authorized by the Constitution; ■¼ of the States don’t have the right to dictate to ¾ of the States on matters within the powers delegated to the federal government; ■Nullification is not a “constitutional right”;

And near the end of his Notes, Madison quoted with approval Thomas Jefferson’s statement:

“…but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…”

Madison then says:

“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.” [emphasis mine]

Do you see? Madison is saying that: ■S. Carolina couldn’t nullify the Tariff Act of 1828 because the Act was constitutional. ■Nullification is a “natural right”- it is not a “constitutional” right. Rights don’t come from the Constitution. ■All agree that when the federal government acts outside of the Constitution, nullification by the States is the proper remedy.

Application Today

When WE THE PEOPLE ratified our Constitution, and thereby created the federal government, WE did not delegate to our “creature” power to control our medical care, restrict guns and ammunition, dictate what is done in the public schools, dictate how we use our lands, and all the thousands of things they do WE never gave them authority in our Constitution to do.

Accordingly, each State has a natural right to nullify these unconstitutional dictates within its borders. These dictates are outside the compact The Sovereign States made with each other –WE never gave our “creature” power over these objects.

As Jefferson and Madison said, without Nullification, The States and The People would be under the absolute and unlimited control of the federal government.

And that, dear Reader, is where these nullification deniers, with their false assertions and shameful misrepresentations, would put you.

To sum this up: ■Nullification is a natural right of self-defense. ■Rights don’t come from the Constitution. Like all Rights, the right of self-defense comes from God (The Declaration of Independence, 2nd para). ■Nullification is a reserved power within the meaning of the 10th Amendment. The Constitution doesn’t prohibit States from nullifying, and We reserved the power to do it. ■God requires us to disobey civil authorities when they violate God’s Law. That’s why the 2nd para of the Declaration of Independence says we have the duty to overthrow tyrannical government. See: The Biblical Foundation of our Constitution. ■Nullification is required by Oath of Office: Article VI, cl. 3 requires all State officers and judges to “support” the federal Constitution. Therefore, when the federal government violates the Constitution, the States must smack them down.

Conclusion

Our Founders and Framers were a different People than we of today. They were manly men who knew statecraft & political philosophy and could think. But our “experts” of today have been indoctrinated with statism and can’t think. They just repeat what they hear. We need them to man up, throw off the indoctrination, learn our Founding Documents including The Federalist Papers, get a Logic Book, and stop disseminating misinformation! We need them to repudiate cowardice as the proper response to the evil which is overtaking our Land. Man up, People! PH

Endnotes:

1 Thomas Jefferson, The Kentucky Resolutions of 1798, 8th Resolution.

2 James Madison, Notes on Nullification (1835). The quote is near the end. Use “find” function.

3 The deniers seem unaware that The States retained sovereignty in all matters not exclusively delegated to the federal government. Alexander Hamilton says in Federalist No. 32 (2nd para):

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention [the Constitution] aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not … EXCLUSIVELY delegated to the United States…” [caps are Hamilton's; boldface mine]

Federalist No. 62 (5th para):

“…the equal vote allowed to each State [each State gets two U.S. Senators] is …a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty… [in order to guard] … against an improper consolidation of the States into one simple republic.” (Madison or Hamilton) [boldface mine]

See also Federalist No. 39 (Madison) (6th para, et seq.)

In Madison’s Report on The Virginia Resolutions (1799-1800), he several times refers, in his discussion of the 3rd Resolution, to the States acting “in their sovereign capacity” when, as “the parties to the constitutional compact” they decide“in the last resort, whether the compact made by them be violated”:

“…The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition….” [boldface mine]

4 Contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only. E.g.:

“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects…” (Federalist No. 39, 3rd para from end) (Madison) [boldface mine]

“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...” (Federalist No. 14, 8th para) (Madison) [boldface mine]

“…It merits particular attention … that the laws of the Confederacy [Congress], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [caps are Hamilton’s] (Federalist No. 27, last para)

5 Our Constitution authorizes the federal government to secure our God-given rights in the ways appropriate for the national government of a Federation. The States secure them in other ways.

6 The Kentucky Resolutions of 1798,8th Resolution.

7 Madison’s Notes on Nullification (1834). The quote is near the end. Use “find” function.

8 This explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent jurisdiction”.

9 Teddy Roosevelt ran on the Progressive Platform of 1912. Both major parties have been dominated by progressives ever since.

“…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” [emphasis mine]

11 The Tariff Act of 1828 was constitutional; but benefited the Northeast at the expense of the South. It thus violated our Founding Principle that governments exist to secure the rights God gave us. God never gave us the right to be free of competition in business! Since the tariff was constitutional, but unjust, the remedy was to get Congress to fix it.

12 Madison’s Notes on Nullification (1834) are long & rambling. Copy to Word, enlarge the type, & color-code to sort out the strands of arguments. Keep in mind that what Madison is addressing is S. Carolina’s peculiar doctrine where they wanted to nullify a constitutional tariff! PH

Justice Stevens makes my blood boil but I am glad you posted this. Stevens thinking on full display illuminates the differences between the competing ways of viewing the constitution and its role in limiting government and protecting individual rights.

Before I go off on a layman's rant, may I ask of Bigdog, Crafty, others, do you agree with Stevens, or if not, what are the flaws of his thinking?

Stevens: "neither the text of the Fifth Amendment Takings Clause, nor the common law rule that it codified, placed any limit on the states' power to take private property, other than the obligation to pay just compensation to the former owner."

Huh?

Justice Steves alleges that Kelo is model of judicial restraint. Judicial restraint to Stevens is to look the other way when faced with government oppression of basic individual rights and liberties.

What individual right is the New London redevelopment plan tromping all over? Obviously the right of private property ownership, the right to own your own home. Is that right fully enumerated in the constitution? No. Was the right of privacy in Roe which Stevens concurred enumerated? No. Do you have the right to live in your home without being judged by coveters or tyrannical government about whether your usage, with no complaints on record, is optimal for the community?? Not under the Kelo/Stevens legacy.

What did the constitution say about unenumerated or under-enumerated rights? See the 9th amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Did the founders and framers see a right to property ownership? Yes, obviously so. See the 5th amendment: "...nor shall private property be taken for public use, without just compensation". Does this literally prohibit takings for any other purpose than public use? No it implies it.

Were the framers aware of threats to private property ownership existing before the constitution was written? Yes. When was the following written, by whom, and how many framers owned a copy: "Thou shalt not covet thy neighbor's house..."??

What did Madison say when he originally opposed the Bill of Rights? A listing of rights could be dangerous, leading to the erroneous conclusion that only those rights specifically listed were actually protected? Prescient.

Had the framers written in greater length on "private property...taken for public use", wouldn't they just risk even more of the danger that Madison warned above? The 5th amendment reference contributes powerfully to the idea that private property ownership was very much an unenumerated right in the framing, to be violated only for "public use". Stevens is grasping to find that doesn't say "only" public use. Would he also conclude that takings for other than public use do NOT require just compensation? Why doesn't he conclude that? Where was his narrow textual reading of the articles and amendments during his finding of trimesters in Roe?

When did we go from "public use" to public purpose meaning any purpose? In previous case law he points to Berman. Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black, Justice Thomas happened to notice. (http://www.law.cornell.edu/supct/html/04-108.ZD1.html) No matter to Stevens. Expanding on the creeping powers of government and eroding the rights of individuals in each incremental case is judicial restraint in Stevens' view. Maybe we need a little less of that!

Justice Thomas wrote: "The Constitution’s text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking."

Like the stunned dissenters in NFIB v. Sebelius repeatedly questioned, what powers doesn't the federal government have if they have all of these? Stated differently since this is about local government powers, what rights have you retained now that you lost all of these? Very few. If you follow the Stevens hypocrisy of original text selectivity carried forward by enough others, you will retain only those rights that are recognized by 5 elites on a given day, generally those linked in politics to liberal causes.

Thanks Bigdog. When Justice Stevens said Kelo was the most unpopular decision in his entire career I assumed he was caught reading the forum.

Do you see some of these same problems in the healthcare decision? Roberts view aside, the other four never seem to object to expansions of government powers and the corresponding losses of individual rights and freedoms. As much as owning a home, isn't something as basic as the right to choose what services you want to buy or insure in my opinion a basic right in a free society? Aren't healthcare choices part of a right to privacy? Especially in the wake of Roe!

Thanks Bigdog. When Justice Stevens said Kelo was the most unpopular decision in his entire career I assumed he was caught reading the forum.

Do you see some of these same problems in the healthcare decision? Roberts view aside, the other four never seem to object to expansions of government powers and the corresponding losses of individual rights and freedoms. As much as owning a home, isn't something as basic as the right to choose what services you want to buy or insure in my opinion a basic right in a free society? Aren't healthcare choices part of a right to privacy? Especially in the wake of Roe!

There is a great deal here, Doug, so let me try to address some of it. This can be an extended dialogue if necessary.

I disagree with the idea that none of "the other four never seem to object to expansions of government powers and the corresponding losses of individual rights and freedoms." For example, the plurality of USSC decisions are unanimous. It just seems to be the 5-4 that get press. (See http://www.supremecourt.gov/opinions/12pdf/11-820_j426.pdf orhttp://www.supremecourt.gov/opinions/12pdf/11-770_j4ek.pdf for examples announced this week with an interesting splits that call your point to question.

A person is most secure in his home. And if you don't agree with Roe, why cite it? You might win on Obamacare, but then you would necessarily have to compromise on abortion, which I think you are against at least as much as ACA. Is there another argument to be made without so much fallout for your own beliefs?

I agree wholeheartedly with the finding of a right of privacy in the womb in Roe and a right of privacy in the home as seen by the dissenters in Kelo, and in my health insurance records and choices. The right of privacy in the home would not shield you in the event of a killing or even a case of mistreatment of animals, see Michael Vick. Ditto for the womb, in my opinion. Short of the interest of protecting another life, all the choices and records of the womb are hers.

My point bringing up Roe may be lost because it is not the same Justices on Roe, Kelo and ACA. That said, I think these four Justices recognize privacy quite clearly even while an innocent life is taken in one situation yet don't give it a thought or a mention that I noticed for the citizen who is home minding his or her own business. That neglect troubles me.

"Is there another argument to be made without so much fallout for your own beliefs?"

I will accept your help in answering that. I gave my best shot above at making the distinction. For me, privacy is recognized in all cases but not past the point where the health policy records, the home or the womb become tied to a terror case, a killing, evidence of mistreatment, endangerment of others, etc. That's when privacy ends and the authorities can come in - to protect others. These Justices are in effect sending in the authorities when you are sitting home, harming no one, paying your property taxes and all the healthcare expenses you incur (actual, not ACA) in full and on time. For that, they can still take your home.

While I was on the treadmill at the gym yesterday, I finally listened to the podcast that Glenn Reynolds, our friendly neighborhood Instapundit and University of Tennessee law professor, recorded recently with Russ Roberts, economics professor at George Mason University. At about 30:00 minutes into the recording, Reynolds and Roberts had the following exchange over Louis Michael Seidman’s piece in the New York Times at the conclusion of 2012, ominously titled, “Let’s Give Up on the Constitution.”

I quickly typed this up from the MP3, apologies if there are any errors in the transcription:

ROBERTS: We had a recent guest on the program, Louis Michael Seidman, and he suggested that the Constitution’s out of date. It makes us beholden to a group of dead people who lived over two hundred years ago, and we should just ignore it, unless something in it makes sense. He happens to be a defender of the Second Amendment – he wouldn’t get rid of that. Or the First Amendment; he likes that one, too. But, basically [he thinks] we should keep good laws and get rid of bad ones; [keep] good practices, and get rid of bad ones. So you just avoid the Constitutional Convention all together. You just stop using the Constitution! What do you think of his argument?

REYNOLDS: I call this the Raj Koothrappali approach to Constitutional Law. I don’t know if you watch Big Bang Theory, but Raj is Indian of course, and he’s lecturing his sister from India on Hindu rules about modesty and sexual proprietary, and she just looks at him and says, “You’re talking to me about this, as you’re eating a cheeseburger!” He just looks at her and says, “Some of it makes sense; some of it’s crazy – whatta do?!” And that’s basically the Seidman approach to the Constitution, right? The parts he likes make sense, and the others are crazy – whatta do?

Here’s the problem with public officials — because that’s really [Seidman’s] audience — deciding to ignore the Constitution: If you’re the president, if you’re a member of Congress, if you are a TSA agent, the only reason why somebody should listen to what you say, instead of horsewhipping you out of town for your impertinence, is because you exercise power via the Constitution. If the Constitution doesn’t count, you don’t have any legitimate power. You’re a thief, a brigand, an officious busybody, somebody who should be tarred and feathered and run out of town on a rail for trying to exercise power you don’t possess.

So if we’re going to start ignoring the Constitution, I’m fine with that. The first part I’m going to start ignoring is the part that says, I have to do whatever they say.

ROBERTS: But his argument is that we already ignore the Constitution; it’s not really much of a binding document.

REYNOLDS: Oh, well, then I’m free to do whatever I want! And actually, that is a damning admission, because what that really says is: If you believe Seidman’s argument; if you believe that we already ignore the Constitution anyway, then in fact, the government rules by sheer naked force, and nothing else. And if that’s what you believe, then all of this talk of revolution suddenly doesn’t seem so crazy, it seems almost mandatory.

ROBERTS: Well, he would say – well, I won’t speak for him, but some would say that, well, there’s a social contract, we’ve all agreed to kind of play by these rules…

REYNOLDS: Oh really?!

ROBERTS: …of electing officials, and…

REYNOLDS: Well, the rules I agreed to electing these officials are the Constitution. I thought we were going to ignore that. That’s my social contract.

Indeed.™ Listen to the whole thing.

Seidman’s article brings to mind a quote from a boring white guy who’s been dead for 80 years, and whose thoughts are even more anathema to the current beltway elite than the Constitution or the Declaration of Independence:

President Calvin Coolidge rose to the occasion of the 150th anniversary of the Declaration of Independence on July 4, 1926, with a speech providing a magisterial review of the history and thought underlying the Declaration. His speech on the occasion deserves to be read and studied in its entirety. The following paragraph, however, is particularly relevant to the challenge that confronts us in the ubiquitous variants of progressive dogma that pass themselves off today as the higher wisdom:

About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.

"President Calvin Coolidge rose to the occasion of the 150th anniversary of the Declaration of Independence on July 4, 1926, with a speech providing a magisterial review of the history and thought underlying the Declaration. His speech on the occasion deserves to be read and studied in its entirety"

GM:

Any chance your mastery of Google Fu can come up with the URL for this speech?

"It was in no sense a radical movement but took on the dignity of a resistance to illegal usurpations. It was conservative and represented the action of the colonists to maintain their constitutional rights which from time immemorial had been guaranteed to them under the law of the land."

Retired Supreme Court justices still judge — and get judgedFor years, Justice Sandra Day O’Connor’s opinion set the direction for the Supreme Court on a host of issues, including important social concerns such as abortion, affirmative action and the way the nation’s elections are financed.But later this month, the retired justice herself has an opinion — in a voting registration case from her home state of Arizona — that the Supreme Court will review.O’Connor was in the panel majority that said Arizona’s requirement of proof of citizenship when registering to vote in federal elections conflicted with federal law. An en banc decision of the U.S. Court of Appeals for the 9th Circuit affirmed the panel’s ruling.O’Connor’s role in the case brings attention to a little-noticed aspect of a justice’s legacy: The work often continues long after leaving the high court.Justices are appointed for life, of course. But since 1937, they have been allowed to take senior status and continue to serve on lower federal courts. The idea grew out of President Franklin D. Roosevelt’s ill-fated court-packing plan.According to a study by Minor Myers III, a professor at Brooklyn Law School, 25 justices have taken senior status since then and 11 of them served on lower courts.Some have been prolific. Myers reports that former justice Tom C. Clark, who retired from the court in 1967, began hearing cases in 1970 and over the next seven years sat on panels that produced nearly 400 decisions. He served on all of the nation’s geographic circuits.Clark and Willis Van Devanter, the first justice to take advantage of senior status, also presided over trials as district judges.Justice Lewis F. Powell regularly heard cases on the U.S. Court of Appeals for the 4th Circuit in Richmond, his home, after his retirement in 1987. But a fellow justice, Potter Stewart, did not find the life to his liking.It was “no fun to play in the minors after a career in the major leagues,” Stewart said.In the past quarter-century, retired justices William J. Brennan, Thurgood Marshall and Byron R. White also served.Among the current justices on senior status, John Paul Stevens decided when he left the high court in 2010 — at age 90 — that he would not sit on the lower courts. Instead, he lectures and writes, including a 2011 book “Five Chiefs,” about the chief justices with whom he served.Justice David H. Souter, 73, is a regular on the federal appeals court in Boston, where he served briefly before his nomination to the high court in 1990. Stephen L. Wasby, a University of Albany professor emeritus of political science who has studied the former justices, describes Souter in an upcoming study as “someone laboring in quiet workmanlike fashion like most court of appeals judges and as befits his low-key personality.”None of his opinions have come before the Supreme Court.O’Connor, 82, has served on most of the nation’s appeals courts since she left the high court in 2006. But of course that is only a small part of her work: she has served on commissions, been outspoken on the subject of judicial independence, launched an online civics initiative aimed at middle-schoolers and just released a book about the court’s history, “Out of Order.”Wasby, who says O’Connor’s lower-court work results in “moderate-to-conservative outcomes, pretty much what we would expect from her Supreme Court service,” said the Arizona decision is the first of hers to be accepted for review by the justices.She served on the panel, but not the en banc review. (As an example of the rarified world of appellate jurisprudence, both opinions were written by Judge Sandra Segal Ikuta — a former O’Connor clerk.)According to Myers’ research, retired justices do not fare particularly well at the high court.Although he looked only at opinions written by former justices, rather than decisions in which they played a role, he found that the court vacated the only opinion it reviewed by former justice Stanley F. Reed. The court overturned two of the three opinions it considered written by the prolific Clark.But former justice Charles E. Whittaker probably got the worst treatment from a former colleague.The request to have a retired justice serve is made from a court to the chief justice. Whittaker, who left the high court in 1962, was prepared to serve. But Myers quotes from a book by David N. Atkinson that says Chief Justice Earl Warren nixed the idea of Whittaker.Warren reportedly told another judge, “Tell him that I never could get him to make up his mind, and I’ll be damned if I will let him do that to me again trying cases.“So the answer is no.”

The Reuters story that follows introduces the facts and issues for the current Supreme Court case on gay marriage. This will be an interesting case to follow, perhaps a landmark decision, IMO. Gay marriage advocates picked a perfect case to try because Ms. Windsor is missing out on a couple million of tax sheltered money because of not the preference of a heterosexual-marriage. (When did marriage start needing a hyphen?)

It is easy for me to sympathize with both sides of this argument. Conservatives should probably want gays to be monogamous, paired and settled for life for many of the same reasons other than procreation that we wish that for heteros.

On the other hand, what right was Ms. Windsor denied that is not also denied to a heterosexual single person? A single heterosexual person does not have a right to either marriage (that requires consent of another person) nor a right to the estate-sheltering, tax deduction in question.

There are two logical, constitutional end-points I can see in this case (the two least likely outcomes of this Court): 1) Uphold current law by ruling that the legislative branch by definition has already set tax law and DOMA law in the way that we-the-people have determined best advances the 'general welfare' of the people. 2) Or they could strike down all tax code preferences encouraging marriage and all other social preferences if the Court believes a government committed to equal protection can not be in the business of setting preferences or treating different people and different groups differently. In that view, equal protection would come to mean that all income from all people and all sources must be taxed evenly.

The least logical decision (most likely) is to strike down thousands of years of language, common law and natural law that define a marriage to be when a man and a woman make a choice and a commitment to become a husband and wife often leading to also becoming a father and a mother, with gender terms intentionally specific. Instead, carve out the politically expedient exception that two same-sex adults can become legally recognized as husband(?) and wife(?), spouse 1 and spouse 2(?), but leave in place all other discrimination in the law against all other persons and groups.--------------http://news.yahoo.com/analysis-death-taxes-supreme-courts-gay-marriage-case-050623739.html

WASHINGTON (Reuters) - Edith Windsor and Thea Spyer, the lesbian couple at the center of a major gay rights case set to go before the Supreme Court this month, were in many ways a typical New York power couple.

Spyer was a psychologist; Windsor, a consultant at IBM. They met in a Greenwich Village restaurant in the 1960s and lived together for decades, summering at a Long Island beach house.

They waited until they were in their mid-70s to marry in Canada in 2007. When Spyer died in 2009, Windsor inherited her spouse's estate, worth about $4.1 million, according to lawyers.

But because she is gay, Windsor missed out on one of the most lucrative tax breaks enjoyed by affluent Americans - the exemption from federal estate tax on wealth passed from one spouse to another.

"The biggest benefit of marriage, financially, is when you die," said Fred Slater, a New York tax accountant.

The spousal exemption to the estate tax is denied to same-sex couples because of the Defense of Marriage Act (DOMA), a law passed by Congress and signed by the president in 1996 that defines marriage as between a man and a woman.

Windsor is challenging DOMA in a case the nine-member high court will hear on March 27. At its core, Windsor's fight is with the Internal Revenue Service over how much federal tax she owes on Spyer's estate.

She seeks the return of hundreds of thousands of dollars in taxes she would not have had to pay if she and Spyer had been of opposite sexes. Her challenge asks whether married gays should be able to claim the same exemption as married heterosexuals do.

The Supreme Court ruling is likely to affect estate taxes paid by only the most affluent of gays. But at stake is a bigger question: Are married gay couples entitled to the same federal tax and other benefits as married heterosexuals?

A ruling is expected by the end of June.

More broadly, however, if the court strikes down DOMA, married gay couples would likely be able to file their income tax returns jointly in states that allow gay marriage - a prospect with ramifications as complex as the tax code itself.

ESTATE TAX IMPACT

In bringing her case to the Supreme Court, Windsor argues that DOMA violates the U.S. Constitution's guarantee of equal protection. DOMA backers say the law is valid.

Of the 50 states, 31 have constitutional amendments banning gay marriage. It is legal in nine states and Washington, D.C.

The remaining states' policies vary, with some recognizing marriage from other states, some providing some of the legal benefits of marriage and others denying marriage by state laws, but not constitutional amendments.

The Obama administration said in 2011 that it viewed DOMA as a violation of the U.S. Constitution and said it would no longer defend it in court. A group appointed by the Republican majority in the U.S. House of Representatives has asked the justices to uphold DOMA.

When Spyer died, the general estate tax exemption was $3.5 million. So Windsor inherited that amount from Spyer tax-free, including gifts received during Spyer's lifetime.

But because they were a lesbian couple, under the DOMA law Windsor could not take advantage of the spousal exemption, which says that a spouse may inherit any amount tax-free from a deceased spouse.

So Windsor was charged $363,000 in estate tax by the federal tax-collecting Internal Revenue Service. She paid her IRS bill but then sued, seeking a refund. She won in district court and in a federal appeals courts, but her case gradually took on increased prominence and eventually made its way to the Supreme Court.

The Williams Institute, a University of California-Los Angeles think tank that studies sexual orientation, estimates that if DOMA is overturned, only about 50 same-sex couples would qualify for the spousal exemption each year.

The institute based its estimate on figures from the U.S. Census and the nonpartisan Tax Policy Center, a think tank.

MARRIAGE PENALTY

But if Windsor wins her case, there would also be changes ahead in income tax filing and other benefits for some 130,000 same-sex married couples, as estimated by the Census Bureau.

A post-DOMA landscape would expose married gays to some of the same problems faced by married opposite-sex couples.

For instance, tax bracket and tax credit variations for singles versus married couples might mean wealthier couples and the working poor could face a "marriage penalty," while middle-income couples with one breadwinner could get a tax break.

"Equality is not always a net fiscal positive" for couples, said Brian Moulton, legal director of the Human Rights Campaign, which advocates for gay rights.

The maximum amount free of tax, whether for a spouse or not, has risen since Spyer died in 2009, and is now $5.25 million. As a result, most estates are passed on tax-free.

Only 3,600 estates were subject to estate tax in 2012, according to government figures, while the richest 10 percent of Americans paid almost all of the estate tax collected, said the Tax Policy Center.

I doubt that Justice Anthony Kennedy suffers from insomnia. But if he ever does, this would be the week. At the Justices' conference Friday, Kennedy may have to choose between his two great legal loves--the sovereignty of the states on the one hand and the dignity and rights of gay men and lesbians on the other.

Evan Wolfson, the president of the advocacy group Freedom to Marry, who was one of the earliest proponents of marriage equality, told me that he is “very hopeful that the rulings in both marriage cases will be good to great, rather than bad.” Wolfson believes that the “momentum we’ve been building has created a climate that says to the Justices they can do the right thing and know that not only will history vindicate them, but it will be true to where the American people already are.”

It might be best to add some caution to that optimism. It is possible that a procedural rule, misunderstood even by most lawyers, could derail one or both of the cases. The anticipated dramatic advances could be deferred if the Court feels the parties before it lack “standing.” That prospect has some gay-rights legal advocates increasingly worried.

CD, BD, others, Are you ready to issue what your opinion would be on the two gay marriage cases, ahead of the Court's decision? Standing, rational basis, strict scrutiny, it all seems very complicated. If it is like the Obamacare decision, I tend to learn the most from the dissent.

Gays who aren't husband and wife, gender specific, are treated no differently under the law than all single people, an argument I haven't heard them make. For better or worse, the movement for sameness for gays (or singles, transgenders or group arrangements), can only lead to the ending all preferential treatment aimed at the institution formerly known as marriage with no hyphen.

I believe in an extreme passion for protecting the rights of life, liberty and pursuit of happiness for all including gay. OTOH, it is of no interest to me whether the plaintiff Windsor was in a committed relationship, until death do we part, with her sister, friend or gay partner. God Bless her freedom to associate, for them to love and look after each other, etc. The only logical discrimination ruling to me would be to strike down all recognition of marriage that treats any person differently than anyone else. It would be a shame to do that, to eliminate public recognition of marriage as proposed elsewhere.-----------------Here is a WSJ Editorial Board member disagreeing with the Editorial Board, an interesting take:

The most telling question in two days of oral arguments on same-sex marriage came yesterday in U.S. v. Windsor, the Defense of Marriage Act case. The questioner, not surprisingly, was Justice Anthony Kennedy, who addressed Solicitor General Donald Verrilli:

You are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?

Let's uproot some of the legal weeds so we have a clear view:

The justices are debating whether Section 3 of DOMA, the provision barring the federal government from recognizing any same-sex marriages is unconstitutional. (Section 2, which permits states to refrain from recognizing other states' same-sex marriage, is not under challenge.)

There are two arguments against Section 3: the federalism argument and the equal-protection argument. The federalism argument is that marriage and family law have traditionally been state domains, and therefore Congress lacks authority to legislate in these areas. The equal-protection argument is that DOMA unconstitutionally discriminates against homosexuals.

Kennedy seems to be giving serious consideration to striking down DOMA's Section 3 based on the federalism argument alone. In this column's view, that would be the correct outcome, which is to say that we respectfully dissent from The Wall Street Journal's editorial position. "The Justices can help the Constitutional system, the country's political temper and the Court's reputation by letting the people decide how to define the core family unit of society." http://online.wsj.com/article/SB10001424127887323501004578386392725153194.html?mod=wsj_share_tweet

Kennedy's evident reluctance to take up the equal-protection argument in Windsor is almost certainly a clue as to his thinking about Hollingsworth v. Perry, the case challenging California's Proposition 8.

In Hollingsworth, observers on either side could find reason for encouragement in Kennedy's questioning at oral argument. On the one hand, as we noted Tuesday, he expressed serious misgivings about the court's imposing a novel social policy on the nation. On the other, he mused about "the voice of these children"--which, as blogress Ann Althouse notes, is a slogan from the Family Equality Council, a gay-rights group that filed a friend-of-the-court brief urging the court to strike down both Proposition 8 and DOMA.

But there is no federalism argument in Hollingsworth, which concerns a state law. It is entirely an argument about equal protection. If Kennedy is reluctant to reach the question in Windsor, how can he even form an opinion in Hollingsworth?

One answer to that question is that he may not have to. In both Hollingsworth and Windsor, the executive branch of the government--California's governor and attorney general in the former case, the Obama administration in the latter--has declined to defend the law under challenge. Other parties have been appointed to argue the case instead, and among the questions the justices considered were whether those parties even had standing to argue the defense.

The court could hold that the designated defenders in Hollingsworth have no standing and thus the case is not properly before the court. Our understanding is that in the event of such a ruling, the Ninth Circuit's opinion would be vacated and the original trial court ruling would be reinstated. That would mean California would be required to establish same-sex marriage, but the laws of no other state would change, and no court elsewhere would be obliged to follow the trial judge's precedent.

It seems to us it would be odd for the justices to hold that the defenders have standing in Windsor but not in Hollingsworth. On this question, however, we enter a rare plea of ignorance. Perhaps there is some pertinent difference, and if an expert in federal procedure would like to produce an explanatory email or blog post, we promise to read it.

At any rate, there is another possibility. Perhaps the equal-protection question in Hollingsworth is more easily resolved than the one in Windsor.

Some argue that Kennedy effectively resolved the Hollingsworth question a decade ago, and in favor of same-sex marriage. Among them are the legal journalist Jeffrey Toobin, the distinguished legal scholar Richard Epstein and . . . Justice Antonin Scalia. This columnist was an early adherent of this view--see our August 2010 column titled "Scalia Was Right," a phrase Toobin borrows in The New Yorker this week--but we've changed our mind.

In 2003 Justice Kennedy wrote the majority opinion in Lawrence v. Texas, which struck down state laws against consensual sodomy as a violation of the right to privacy. Kennedy quoted an earlier dissent by Justice John Paul Stevens and declared that it was thenceforth the view of the court: "The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."

But the miscegenation analogy, the favorite of same-sex marriage's proponents, is misleading. Whether or not one finds the comparison morally compelling, it overlooks an important legal distinction. Laws that distinguish between individuals on the basis of race are (at least in theory) almost impossible to justify, because the Supreme Court has held that they are subject to "strict scrutiny," the most forbidding standard of review.

Neither the Obama administration nor the appellees in the marriage cases argue that the court should apply strict scrutiny in evaluating laws that make distinctions based on homosexuality. The court, led by Justice Kennedy, expressly declined to do so in Romer v. Evans (1996), which struck down a Colorado ballot initiative denying all legal protections to homosexuals. Romer was an equal-protection case while Lawrence was a privacy case, but in both of them the court applied the lowest level of scrutiny: It struck down the laws in question on the ground that disapproval of homosexuality was not even a "rational basis" for the laws under challenge.

That's where Scalia comes in. He vigorously dissented from both Romer and Lawrence, arguing for the right of a democratic majority to embody its moral views in the law. In Lawrence, Kennedy noted that the decision "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."

"Do not believe it," Scalia replied:

If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), "when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution"?

It's a rhetorical question, but under rational-basis analysis it's easily answered: Providing benefits to homosexual couples costs the taxpayers money. If the lesbian widower Edith Windsor prevails in the DOMA case, for instance, the IRS will have to refund $363,053 it collected in death taxes from her late wife's estate. It doesn't get more rational than that.

That's why the Second U.S. Circuit Court of Appeals applied "intermediate scrutiny"--the same level that applies to distinctions between the sexes--in its equal-protection analysis when it decided Windsor v. U.S. The Obama administration argues for "heightened scrutiny," which the Supreme Court has never used and which is, like intermediate scrutiny, stricter than rational basis and more relaxed than strict scrutiny.

Applying a higher level of scrutiny would be a major legal step. If Kennedy is averse to reaching the equal-protection question in Windsor, that suggests it is a step he would prefer not to take. Which leads to the question: How would one resolve Hollingsworth using a rational-basis test?

As we noted March 13, the administration's friend-of-the-court brief offers one idea. California, in common with eight other states, has a law on the books providing for "civil unions" that come with all the benefits of marriage. The administration argues that since civil unions and marriages are materially identical, those states--unlike those without civil unions, or with ones that are lesser than marriage--have surrendered the option of claiming a rational basis in protecting the public fisc.

The only plausible reason they have for denying the name marriage, the argument continues, is disapprobation of homosexuality, which the court rejected as a rational basis in both Romer and Lawrence. Thus, the administration urges, if the court won't apply heightened scrutiny it should order those nine states to abolish the distinction between civil unions and marriages.

There's no indication what Justice Kennedy made of this particular argument; he didn't ask Verrilli any questions on Tuesday. But it seems to us that it misunderstands the nature of the rational-basis test and runs counter to the logic of Romer and Lawrence. Rational basis is a test that involves both ends and means. Promoting public health, for example, would obviously be a rational basis for a statute banning smoking in bars, but it might not suffice to justify a statute banning smoking only in gay bars.

In both Romer and Lawrence, Kennedy stressed the mismatch between the (at least theoretical) onerousness of the means and the amorphous nature of the end (expressing disapprobation of homosexuality).

From Romer: "Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. . . . [The law's] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests."

From Lawrence: "When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. . . . The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged."

California law, by contrast, treats homosexual couples as equal to heterosexual couples in every respect except for the official name it applies to their relationships. And "civil unions" implies no disapprobation, merely a lesser degree of approbation than "marriage." It's hard to imagine a less onerous law.

If Scalia was right, then Romer and Lawrence stand for the view that to disapprove of homosexuality, or even to view it less favorably than heterosexuality, is an irrational idea that cannot be allowed to influence public policy even in the most minimal ways. But that sounds like strict scrutiny to us.

If Scalia was wrong, the court could uphold Proposition 8 on the ground that it imposes a burden so minimal that the rational-basis test is far easier to meet than it was in Romer or Lawrence.

One of the central questions in the two gay marriage cases to be argued before the Supreme Court this week is whether gays and lesbians are a protected class under the Constitution. Under longstanding principles, government actions that fall heavily on “discrete and insular minorities” historically subject to prejudice and stigma are to be given particular scrutiny.

The 3.4 percent of Americans who identify as gay, lesbian, bisexual and transgender clearly qualify as this kind of minority. Laws classifying individuals based on sexual orientation — the anti-gay-marriage initiative in California called Proposition 8 and the federal Defense of Marriage Act — must be given heightened scrutiny.

Justice Ruth Bader Ginsburg, then the foremost advocate for gender equality, swayed the court 40 years ago to adopt that standard for gender-based distinctions. The court concluded “that classifications based upon sex” were “inherently suspect.” But it has not yet decided how to treat laws based on sexual orientation. The solicitor general and others argue persuasively that such laws require close review just as those based on gender do.

The United States Court of Appeals for the Second Circuit struck down the Defense of Marriage Act for defining marriage as between a man and a woman. The appeals court convincingly found that in focusing on sexual orientation, the act warranted heightened scrutiny under the test the Supreme Court established for gender-based laws — and that the statute was unconstitutional when reviewed closely. The test considers whether members of the group have experienced invidious discrimination; whether individuals can leave the group without losing a basic part of their identities; whether the group’s defining characteristic is relevant to its ability to contribute to society; and whether members can protect themselves in the political process.

Gays, lesbians, bisexuals and transgender people share a common “immutable” characteristic because their sexual orientation is fundamental to who they are and they have indisputably been discriminated against. Until a decade ago, the Supreme Court upheld state laws making “private sexual conduct” between people of the same sex a crime. In the five most recent years for which the government has data, through 2011, hate crimes in the United States fell by 19 percent. But hate crimes based on sexual orientation went up by 3 percent. The discrimination has nothing to do with the ability to contribute to society.

Finally, gays and lesbians, as a minority group, cannot protect themselves from discrimination in a political process governed by the majority. If they had power, Proposition 8 and the Defense of Marriage Act would never have passed, nor would the laws currently on the books in 39 states that specifically restrict marriage to opposite-sex couples.

As the brief for the United States said in the Defense of Marriage Act case, “This is the rare circumstance in which a faithful application of the court’s established criteria compels applying heightened scrutiny to an additional classification.” Neither of the laws in the two cases before the court can withstand this serious constitutional examination.

"Until a decade ago, the Supreme Court upheld state laws making “private sexual conduct” between people of the same sex a crime." And President Clinton signed DOMA and and and.

So is the Constition no longer to be strictly contructed and meanings never intended now imputed to be constitutionally compelled?

IMHO such a doctrine is profoundly destructive to the the Constition and the role of the Judiciary in our system-- the judiciary becomes a third political branch instead of remaining a branch dedicated to applying the law as written and intended.

And what of those who believe gay behavior to be morally/spiritually wrong? Is their opinion now to become a thought crime? With regard to those for whom this is a matter of religious belief, is the free exercise of their religion now illegal?

Original intent is onlt one way to interprete the Constitution. Another, and one that is generally considered "conservative" is meaning of the words.

Since there is a clause that says: "...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws it is pretty easy to see that some people are equally protected when denied the right to marry.

And there is this: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

And this: "No State shall enter into any ... Law impairing the Obligation of Contracts."

And, there is a long-standing understanding of the dichotomy of belief and action. Assuming the SCOTUS strikes DOMA, you (broadly defined) can believe that marriage means a man and woman. It just won't be supported legally. There were (are?) plenty of people who felt that marriage between different races is unbiblical (or similar). That does not mean that the belief is A), true or B) legally enforceable.

In the older dictionaries, pre-2013, non-hyphenated marriage meant some kind of ceremony where a man and a woman consent to become husband and wife. Does DOMA or Prop 8 remove that right for anyone? No (IMO). Must change the meaning of the privilege in order to deny it. Opting out of that union is also a right.

In the older dictionaries, pre-2013, non-hyphenated marriage meant some kind of ceremony where a man and a woman consent to become husband and wife. Does DOMA or Prop 8 remove that right for anyone? No (IMO). Must change the meaning of the privilege in order to deny it. Opting out of that union is also a right.

1, states already allow incest. Do you know how many states allow first cousins to marry? Do you want to overturn those laws, GM, even though they are between a man and a woman?2, states allow girls to marry men, when those females are not yet legal of legal voting, drinking, etc. age. Do you want to overturn those laws, GM, even though at least one of the marriage partners is still a minor? 3, how much of using a dictionary to define marriage is circular logic? Could it be that the dictionary definition has changed to define marriage as a man/woman because the state defines as such?4, there are plenty of biblical marriages which are not a man and a woman. Or marriage laws/rules that we now hold be anachronistic. 5, since you are into logic: since Mormons believe in pologamy, and since Mormons are Christian, polygamy is Christian.

Incidentally, why do you want small government and a lack of a nanny state except in policy spaces you disagree with? If there was a national ban on soda, or guns or... well, nearly everything else, you would be talking dictatorship. Why homosexual marriage?

You are throwing out a lot of chaff rather than answering the question.

No, GM, it is you who do this. The question is about gay marriage. Not pologamy. But, you brought it up. It is you who bring up "chaff." Is it because there is no discernable constitutional provision to ban gay marriage, so you hope to complicate the issue?

"In the older dictionaries, pre-2013, non-hyphenated marriage meant some kind of ceremony where a man and a woman consent to become husband and wife. Does DOMA or Prop 8 remove that right for anyone? No (IMO). Must change the meaning of the privilege in order to deny it. Opting out of that union is also a right."

BD "Is the meaning of the words "to marry" in the Constitution? "

MARC: No, the meaning of the verb is in the English language. Advocates of gay marriage, in order to by-pass the political effort required to change the law by the political process (as they did with abortion), now seek to change the meaning of the word in order to bootstrap themselves into the language of the Constitution. I'm calling bullexcrement. No where in the C. is the SCOTUS empowered to redefine words so as to override the expressed will of the majority and by so doing impose its personal predilections.

Marc, I know this is no surprise, but I disagree with you, for all of the points I made earlier about what IS in the Constitution. And, as religion IS in the Constitution, I would have an issue if an "all out war" on religion erupted. But, by the same token that CK brings up in his article, why shouldn't a Quaker, or Episcopalian same sex couple NOT be recognized?

"The farce that is the Supreme Court of the United States has now taken up a new cause: same-sex marriage. To push that cause, the anti-Constitutional members of the Supreme Court prepared to declare that the federal government cannot define marriage for the purpose of federal benefits under the Defense of Marriage Act (DOMA). This is the same Supreme Court that declared last year that the federal government can force individuals to buy health insurance. To simplify, then: The federal government can't define how federal cash gets spent, but it can define how your cash gets spent. There is no logical principle that undergirds any of this." --columnist Ben Shapiro

It isn't the right or privilege to marry that is in question, gays have always had that same right as heterosexuals (see Billie Jean King, Rock Hudson), it is the right to marry the person you love, who consents.---------------DOMA does not stop any state from performing or recognizing gay marriages or single out gay marriage apart from other permutations. It is saying that the other states and the Feds don't have to recognize other unions from the states who do that as the same as a husband-wife marriage, which is defined as one of each gender. http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396.ENR:

Prop 8 also does not single out gay marriage either any more than does it excluded larger groups:Sec. 7.5. "Only marriage between a man and a woman is valid or recognized in California. "---------------------

In political language, the disadvantaged group is called LGBT, meaning not just gays but all Lesbians, Gays, Bi-sexuals, trans-sexuals. Addressing the needs of the last group alone, transgender, would mean an end to all gender distinctions, as it is a changeable state. Interestingly (to me), an end to all gender distinctions was written in the Equal Rights Amendment - which the nation failed to ratify.

Somewhere between about 2.5% and 3.4%(Gallup) of adults identify as gay, a significant political minority. Presumably Bi-sexuals and Polygamists whose needs are more than one are not helped by a gay marriage ruling. They are much smaller groups and even more vulnerable to discrimination by the majority. They don't have political power, but how does that change the meaning of the words of the constitution? After DOMA or Prop 8 is struck down, it is still constitutional to prohibit recognition of these multiple partner unions? They still cannot marry whomever they love that will consent. Why doen't that fail the same test of logic or scrutiny, treating individuals from different groups differently?

Singling out hetero-marraige(-hyphened) for public policy preference was electorally intentional, the opposite of a sin tax, to encourage certain behaviors for the general welfare. Singling out gay couples to add to the special treatment class is still offering special treatment to members of selected groups at the exclusion of others. It still draws a moral line in law, damaging for example the children with polygamist upbringings, to extrapolate the plaintiffs attorneys' logic. It also leaves in discrimination against single people in tax and estate law, which is the majority of new parents, if child rearing was the concern. Why not strike down everything to do with marriage, family or any other recognition used for preference? Isn't that really what is in question?